AB 36

Under the 11th Amendment to the U. S. Constitution and article IV, section 27,

of the Wisconsin Constitution, the state may not be sued for damages unless it has

waived its sovereign immunity. Specifically, the U.S. Supreme Court has recently

held that, unless a state has waived its sovereign immunity, the state may not be

sued for any of the following:

1. Damages for a violation of the Americans with Disabilities Act of 1990 (ADA),

which prohibits an employer, including a state, from discriminating against an

individual on the basis of disability.

Bd. of Trustees of Univ. of Ala. v. Garrett

, 531

U.S. 356 (2001).

2. Damages for a violation of the Age Discrimination in Employment Act of

1967 (ADEA), which prohibits an employer, including a state, from discriminating

against an individual 40 years of age or over on the basis of age.

Kimel v. Fla. Bd.

of Regents

, 528 U.S. 62 (2000).

3. Damages for a violation of the Fair Labor Standards Act (FLSA), which

requires an employer, including a state, to pay the federal minimum wage and 1.5

times the employee's regular rate of pay for hours worked in excess of 40 hours per

week (overtime pay).

Alden v. Maine

, 527 U.S. 706 (1999).

The U.S. Supreme Court has also recently held that a state employee may sue

for damages for a violation of the family leave provision of the federal Family and

Medical Leave Act of 1993 (FMLA), regardless of whether the state has waived its

sovereign immunity (

Nevada Dep't of Human Resources v. Hibbs

, 538 U.S. 721

(2003)), but did not rule on whether a state employee may sue for damages for a

violation of the medical leave provision of the FMLA absent a waiver of sovereign

immunity.

This bill provides that the state may be sued in a federal or state court of

competent jurisdiction for a violation of the ADA, the ADEA, the FLSA or the FMLA

and, in an action for a violation of any of those acts, is liable for all remedies that are

available for such a violation to the same extent that a public entity other than a state

is liable.

Accordingly, under the bill, if an employee of the state sues the state for a

violation of the ADA, the ADEA, the FLSA or the FMLA, the state may be ordered

as follows: